Karen Wooten Professor O’Neal

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Karen Wooten

Professor O’Neal

A-CAPS 4360

20 April 2013

To Be or Not To Be:

Should Physician-Assisted Suicide Be Legalized?

Physician-Assisted Suicide (PAS) has been publicly debated and highly controversial for centuries. The controversy surrounding PAS drives into the very core of morality, ethics, and personal belief systems. Legal systems, history, religion, and society as a whole further affect the controversy surrounding PAS. PAS evokes powerful emotions in those who support it and in those who are opposed. In Shakespeare’s Hamlet, the famous soliloquy of Hamlet represents many core questions about life and death. His statements represent the structure of the argument over legalization. He questions the meaning of life, the value of a life full of hardships, and the consequences of suicide. The purpose and meaning of life and death will very likely enter one’s conscious over the course of his lifetime. What gives life meaning and value is highly individualized and evolves many times over the course of one’s lifetime. The variances in personal beliefs and values often conflict with the laws designed to protect and govern society. This is profoundly true with the debate over legalization of PAS.

One thing is for certain. All living things eventually die. Death is a part of life. Whether it is one’s own death or the deaths of loved ones, the death process is likely to provoke a range of emotions and trigger thoughts directly related to the PAS argument. The most common instance of this, and the platform of PAS, is when the death process includes extreme pain and suffering. It is difficult to watch others suffer. It prompts awareness of and desires regarding one’s own death. It prompts fear. Witnessing the death process is profoundly emotional and thought provoking. This is what makes the argument over PAS legislation so significant. Who controls end-of-life decisions? Why do some suffer more than others? What is best for society? Where do individual rights come into play? What would your mother, father, sister, or brother want? In many cases, individuals examine their own mortality. There are countless questions evoked by the PAS debate. This issue is intricately weaved into deeply rooted value systems, involves fundamental human rights, and has the potential to directly impact much of society. Accordingly, it requires an evaluation of the question: should PAS be legalized? The purpose of this paper is to examine the PAS debate including its history, current and historical legislation, parties to the controversy, and the common arguments presented for and against PAS. This paper will seek to understand and explore the values of each party, analyze their arguments, and identify their corresponding solutions. The paper will conclude with a possible solution to the debate supported by moral reasoning and normative ethical theory, implications to the proposed solution, and an action plan for implementing the proposed solution.

In order to fully understand the controversy, it is important to understand the terminology commonly used when discussing PAS. In many journals, the term assisted death is used to incorporate PAS and euthanasia (Shariff 144). There is a distinct procedural difference between these terms. With PAS, a physician provides the patient with the means, typically a pharmaceutical prescription, to end his life. The patient chooses when, where, and if they take the lethal dose of medication (Gittelman 369). Euthanasia occurs when the physician administers the lethal drug to the patient at that patient’s request (Wilkinson et al. 14). Euthanasia can be voluntary or involuntary, direct or indirect. If the physician’s act directly leads to the individual’s death, it is called direct euthanasia. If the physician’s act eventually leads to the individual’s death, it is referred to as indirect euthanasia. In voluntary euthanasia, the patient specifically requests the medication to aid in their death. Involuntary euthanasia occurs when the physician administers the legal medication without specific request or consent of the patient (Gittelman 369). The Hippocratic Oath dates back to 400 BC. It is used as ethical set of guidelines and obligations for physicians. Portions of the Hippocratic Oath are often taken by medical students during graduation ceremonies. In essence, the students take a pledge to provide only beneficial treatments and to avoid actions that cause harm (“Hippocratic oath”). In many ceremonies, “the physician is required to state that: ‘I will neither give a deadly drug to anybody if asked for it, nor will I make a suggestion to that effect’” (Hosseini 203). Palliative treatment is another important term in the PAS debate. This term encompasses a variety of approaches aimed at reducing physical pain and suffering, including pain management (Shariff 146). Additional terms will be examined in context of the arguments in which they present themselves. Finally, the reader should be aware of the understated significance of the use of terminology in arguments for and against PAS. Certain terms may or may not evoke generalized feelings in the reader. It is important to remain aware of generalizations attached to words such as death, dying, and suicide in order to remain open to the presented arguments for and against PAS.

Current legislation regarding PAS is both recent and limited in the United States. As of now three states, Oregon, Montana, and Washington, have laws legalizing PAS. Assisted suicide is prohibited by state law in thirty-nine states (ProCon.org). The United States Supreme Court has not specifically addressed PAS in terms of legality. This decision has been left in the hands of the individual state governments (Hosseini 204). The PAS debate reached the Supreme Court via two lawsuits in the late 1990s, both filed under the Fourteenth Amendment rights of Due Process and Equal Protection. In both cases, the constitutionality of state laws prohibiting PAS and suicide were questioned (Rosenfeld 36). The Fourteenth Amendment prevents States from passing or enforcing laws that “deprive any person of life, liberty, or property, without due process of the law, nor deny to any person within its jurisdiction the equal protection of the laws” (LOC). The Supreme Court ruled that neither euthanasia, nor PAS are constitutionally guaranteed rights (Gittelman 373). The significance of their ruling presented itself in the commentary of the decisions. This commentary addressed the PAS debate and allowed the debate to continue. The commentary also implied the feasibility of legalization in the future (Rosenfeld 38).

Oregon was the first state to legalize PAS with its Death with Dignity Act (Gittelman 373). Following this law’s success, multiple states have put forth proposals to legalize PAS; however, most of have not been successful (Rosenfeld 39). Washington’s Death with Dignity Act was passed in 2008. In both Oregon and Washington, there is a specific protocol physicians must follow when granting requests for PAS. Those who request PAS must be competent adults, must have been diagnosed with an irreversible, terminal disease, and have less than six months to live. The request must be made voluntarily. Once these requirements are met, the physician must refer the person to another physician to confirm the patient is making a voluntary, competent request. If either physician believes the requesting individual has impaired judgment, psychiatric or psychological disorders, the individual must be referred to counseling. The request for PAS cannot be granted until the individual is determined capable and competent in making the decision to take medication to end his life (Shariff 146). Montana’s Death with Dignity Act went into law in 2009. This decision came in the form of a lawsuit filed before the Montana Supreme Court. Montana’s Constitution protects the rights of a citizen to receive a prescription for lethal medication to end his life. Thus, the Montana Supreme Court ruled in favor of PAS (ProCon.org). Though there are only three states with current legislation regarding PAS, there have been numerous bills to support PAS filed throughout history.

In researching PAS, the enormity of the scope and secondary issues connected to the debate is unmistakably apparent. There is an overwhelming array of directions this debate can take. These directions present a vast number of secondary issues. The magnitude of information available surrounding the PAS debate is compelling and indeed illustrates the complexity of the issue. It is the Pandora’s Box of moral dilemmas. This is likely why it has remained controversial, albeit in different forms, for over 2,000 years.

As this is a question of legalization, current and historical laws and legal proceedings and their significance in the debate’s history and current position are within the scope of this paper and will be reviewed. This paper will not discuss the various roles of state versus federal government. Additionally, secondary issues such as health care legislation, prescription drug coverage, and healthcare costs will not be discussed in this paper. Religion is another important component of the PAS debate and is within the scope of this paper; however, each type of religion and their corresponding doctrines will not be evaluated. Palliative treatment plays a significant role in PAS arguments. Undeniably, the goals and role of palliative treatment in end-of-life decisions have been influenced by the PAS controversy. Palliative treatment will be discussed in context, but not at length. There are numerous secondary issues that arise when discussing palliative care. This paper will not discuss issues such as pain management processes, potential for pain pill addiction, or side effects. The role of depression in end-of-life decision making is frequently cited in arguments against PAS. Depressive disorders will be briefly discussed; however, the diagnosis, treatment protocols, and types of depressive disorders are not within the scope of this discussion. Euthanasia is consistently referenced in PAS history and literature. There is a distinct difference between euthanasia and PAS; however, this was not always the case. Euthanasia is within the scope of this paper. Accordingly, euthanasia will be referenced throughout this paper. The purpose of this paper is not to examine legalization of euthanasia. This paper is specifically addressing the question of whether or not PAS should be legalized.

PAS is not a recent idea or controversy. Discussions of assisted suicide and euthanasia can be found in the writings of ancient Greek and Roman philosophers. The term euthanasia is of Greek origin and is translated to mean happy death (Hosseini 203). In historical writings, euthanasia is commonly described as, “a pleasant state of mind at the time of one’s death, with no reference to the speed or timing of death per se” (Rosenfeld 14). Ancient Greek and Roman societies considered physical health to be one of the highest virtues. Hence, many Greek and Roman scholars saw suicide as a morally acceptable action for individuals who were ill, suffering, or physically impaired (Rosenfeld 14). There are numerous accounts of physicians’ assistance in suicide in Roman literature. Physicians were often commended for their ability to use their knowledge of medicines and poisons to assist persons in “quick and peaceful deaths” (Rosenfeld 15). The first documented opposition to assisted suicide came from Hippocrates. Hippocrates sought to understand the cause of illnesses, lessen pain, improve well being, and advocated physical examinations of patients (Rosenfeld 16). The Hippocratic Oath prohibited assisted death; however, Hippocrates’ teachings were not commonly accepted for many years (ProCon.org).

During the first century throughout the Middle Ages, references to euthanasia and assisted suicide diminished. Christianity and Hippocratic principles placed human life in God’s hands. The Christian and Jewish faiths opposed suicide and forbid euthanasia (ProCon.org). The Church valued human life over human suffering. By the end of the Middle Ages, Christianity was the dominant force behind legal and moral thinking. Suicide was considered an unforgivable sin, regardless of the circumstances (Rosenfeld 16). The public’s view of suicide is also reflected in English laws of that time. Individuals who committed suicide to avoid punishment for their crimes and individuals who committed suicide without cause lost their land and wealth. If an individual ended his life due to pain or because he had become disillusioned with life, his land went to his heirs and his wealth was forfeited (Rosenfeld 26). Early United States laws were similar to those in England. Suicide was illegal in most of the original thirteen colonies. Individuals who committed suicide were buried in shame and their graves were marked with piles of stones as a sign of damnation and a warning to others (Rosenfeld 26).

The controversy over assisted suicide and euthanasia reemerged during the nineteenth century. Advances in medical technology, the discovery of pain medication, and Darwin’s theory of evolution have been credited with opening moral and legal discussions on euthanasia and assisted suicide (Rosenfeld 17). There were marked improvements in physicians’ ability to diagnose illnesses, as well as their ability to forecast the path of the illnesses. These improvements provided patients with knowledge concerning their likelihood of survival and their expected quality of life. The discovery of morphine, the hypodermic syringe, and anesthesia had dual effects on the medical community. On one hand, physicians were able to efficiently treat patients’ pain. On the other hand, physicians discovered a relatively quick and painless way to end life. Most physicians were against providing large doses of pain medication because of the lethal implications (Rosenfeld 18). Darwin’s theory of evolution radically altered scientific thinking. This revolutionary theory separated science from both moral and religious principles allowing for a distinct scientific voice in the debate over euthanasia and assisted suicide (Rosenfeld 18).

During this time, several legal events swayed the public’s view of PAS and euthanasia. In 1828, New York passed the first American law specifically outlawing assisted suicide (ProCon.org). In the 1870s, Samuel Williams began to publicly advocate the use of then well-established analgesics to assist patients in dying (ProCon.org). His writings received considerable medical and scientific attention. His actions are considered a milestone, representing the beginning of the modern public debate over PAS and euthanasia (ProCon.org; Rosenfeld 18). In 1885, The American Medical Association (AMA) publicly condemned Williams’ writings. According to the AMA, “Williams’ euthanasia proposal [was] an attempt to make ‘the physician don the robes of an executioner’” (ProCon.org). By the end of the nineteenth century, the idea that PAS and euthanasia might be an appropriate course of action in select cases was gaining acceptance. Legal arguments over patient rights including the right to die emerged. Articles documenting the use of euthanasia increased. The medical community at large, however, remained opposed to the legalization of euthanasia and PAS (Rosenfeld 20).

The debate increasingly worked its way into the legal system during the twentieth century. A number of legal precedents affected public, medical, and legal perceptions of PAS and euthanasia. In 1905, a bill to legalize euthanasia in Ohio generated extensive vocal opposition in the medical profession and in public opinion. The bill was defeated. In 1906, a similar bill in Iowa was also defeated. Following these defeats, public interest in euthanasia and PAS declined in America (ProCon.org). In Germany, however, support for euthanasia was growing (Rosenfeld 21). Public acceptance of euthanasia grew during the severe economic hardships of the Great Depression. In 1937, the Voluntary Euthanasia Act was introduced to the United States Senate, but it was never voted on. In 1938, the National Society for the Legalization of Euthanasia (NSLE), later called the Euthanasia Society of America (ESA) was formed. These events demonstrate the increasing interest in euthanasia as an appropriate method to assist terminally ill individuals in a peaceful death (ProCon.org). Growing awareness of German Nazi mass killings, concentration camps, and the role of physicians in extermination camps negatively impacted public opinion and suppressed public discussions of euthanasia worldwide (ProCon.org; Rosenfeld 21). Interest in PAS and euthanasia resurfaced in the 1950s. This interest steadily increased over the next three decades (Rosenfeld 21).

More recently, a number of legal cases have served as landmarks in the PAS debate and forever altered medical standards and practices. In re Quinlan, 1976, is considered one of the most significant cases in the legislation related to the PAS. In 1975, Karen Ann Quinlan was admitted to the hospital in a coma. She had lost consciousness, stopped breathing, and was unable to be revived (Rosenfeld 29). Due to lack of oxygen, Karen suffered extreme brain damage and was diagnosed by doctors as being in a permanent vegetative state. She never regained consciousness and depended on a ventilator to survive. Several months later, her parents requested the removal of her ventilator so their daughter could be allowed to die. The hospital refused (ProCon.org; Rosenfeld 29). Her parents brought the case to the New Jersey Superior Court seeking both legal guardianship of Karen and asserting Karen’s constitutional right to die. The Superior Court denied their request; however, the New Jersey Supreme Court overturned their decision making Karen’s father her legal guardian and supported his right to privacy, which in turn allowed him to make medical decisions on her behalf (ProCon.org; Rosenfeld 29). Following this ruling, numerous legal decisions around the country followed suit. Rosenfeld attributes the Quinlan ruling with setting the legal precedence for many state laws regarding end-of-life decision making (31).

The first right to die case to reach the United States Supreme Court was Cruzan v. Director, Missouri Department of Health, 1990. In 1983, Nancy Beth Cruzan was involved in an automobile accident that left her permanently brain damaged in a persistent vegetative state. Her then husband requested a feeding tube be inserted in order to provide her with nutrition and hydration (ProCon.org; Rosenfeld 31). Nancy’s condition remained the same for several years. During this time, her parents had assumed legal guardianship and in 1987, they asked the hospital to remove the feeding tube to allow her to die. When the hospital denied their request, the Cruzans filed suit in the Jasper Missouri County Circuit Court. The Court approved the Cruzans’ request stating, “Nancy’s ‘right to liberty’ outweighed the State’s interest in preserving her life and ordered all life-sustaining interventions be terminated” (Rosenfeld 31). However, Missouri law required “clear and convincing evidence” of patients’ intentions in order to end life support for persons unable to speak for themselves. The Missouri Supreme Court reversed the Circuit Courts’ ruling because the friend’s testimony used to voice Nancy’s wishes was not deemed sufficient to demonstrate Nancy’s intent (Rosenfeld 32). In 1989, the case moved to the U.S. Supreme Court. In 1990, the U.S. Supreme Court ruled in favor of Missouri. They found the provision of “clear and convincing evidence” to be constitutional. The writings of Judge Rehnquist presented evidence that certain life-terminating actions are protected by the constitution. While supporting patient autonomy in specific circumstances, the Court left decisions regarding life-terminating standards and procedures in the control of the individual states (Rosenfeld 32).

In 1997, two cases reached the U.S. Supreme Court specifically bringing PAS and euthanasia into the legal system. Washington v. Glucksberg, 1997, was filed by a Washington nonprofit organization, Compassion in Dying, on behalf of five physicians experienced in treating terminally ill individuals and three terminally ill patients. The suit challenged the constitutionality of Washington’s law banning PAS, specifically the Fourteenth Amendment of the Constitution (ProCon.org; Rosenfeld 33). According to the plaintiffs, the legal ability of a terminally ill person to hasten his death through refusal of treatment while making it illegal for a terminally ill person who did not require life sustaining treatment to hasten his death through PAS violated the Equal Protection Clause of the Fourteenth Amendment (ProCon.org; Rosenfeld 34). The plaintiffs also argued that the Washington law outlawing PAS violated the Due Process Clause because it “placed an excessive burden on terminally ill patients and their physicians in the exercise of their constitutionally protected liberty interest” (Rosenfeld 34). The District Court ruled that the Promoting Suicide Law violated patients’ Fourteenth Amendment rights and was unconstitutional. The Ninth Circuit Court of Appeals affirmed the ruling of the District Court (Rosenfeld 34). In Vacco v. Quill, 1997, Dr. Timothy Quill along with two other physicians and three terminally ill patients challenged the constitutionality of New York’s legal ban on PAS. In this case, the plaintiffs also argued the legal differences in hastening death between patients who required life saving treatment and those who did not as violations of the Equal Protection Clause. The plaintiffs asserted, “failure to allow individuals to choose the manner and timing of death, which they argued was a constitutionally protected liberty, was a violation of the Due Process Clause” (Rosenfeld 36). The Federal District Court ruled in favor of the state of New York. The Second Court of Appeals reversed the decision in favor of the plaintiffs (ProCon.org).

The U.S. Supreme Court unanimously ruled in favor of both Washington and New York. They described the 700-year history of legal prohibition of PAS as the basis of their rejection to the argument over violations of Due Process. According to the Court, “Due Process claims have typically been applied to fundamental rights and liberties that are ‘deeply rooted in this Nation’s history and tradition’. The right to hasten one’s death . . . has never been considered a ‘right’ per se” (Rosenfeld 37). In response to the violation of the Equal Protection Clause, the Court found different treatment methods can be used, “when the cases are distinguishable in some meaningful way” (Rosenfeld 37). The significance of these decisions again presented itself in the commentary of Judge Rehnquist. While it was clear laws prohibiting PAS were constitutionally allowable, it also indicated legal acceptance for laws allowing PAS (Rosenfeld 37).

While the above cases created a legal awareness and set precedence for future PAS laws, the case of People v. Kevorkian drew national, public, and media attention to the PAS debate. Dr. Jack Kevorkian began practicing PAS in the 1980s. He believed individuals deserved a peaceful and dignified death (Hosseini 204). He designed a machine that administered a lethal dose of potassium chloride to chronically ill and suffering individuals. His goal was to gain the medical community’s acceptance of PAS and, ultimately, the legalization of PAS (Housseini 204). Dr. Kevorkian’s first patient was Janet Adkins, a fifty-four year old woman who suffered from Alzheimer’s disease. Following his assistance in her 1989 suicide, Kevorkian was charged with her murder in Michigan. The charges were later dropped mainly because Michigan did not have laws outlawing suicide or PAS (Hosseini 204). In 1998, Kevorkian crossed the line between PAS and euthanasia when he administered a lethal injection to Thomas Youlk, suffering from Lou Gherig’s disease, as opposed to providing him with the means to cause death (Hosseini 203-205). In addition, he filmed the process which was later aired on the CBS program 60 Minutes. Following the broadcast, Michigan again charged Kevorkian with murder. This case presented far more ramifications than the Adkins case. In administering the drug, Kevorkian had committed euthanasia. Also, Michigan now had an established state law prohibiting PAS (Hosseini 205). Despite the pleas for mercy expressed by Youlk’s widow, Kevorkian was convicted of second degree murder and sentenced to ten to twenty-five years in prison (Housseini 205; Rosenfeld 22). The extensive reactions to the airing of 60 Minutes varied. Proponents felt it brought the issue of PAS and end-of-life decision making into the public eye and demonstrated the need for legalization of PAS. Opponents felt he violated the Commandment: Thou Shall Not Kill and his act was murder. The official spokesman for 60 Minutes felt the show performed, “a valuable public service” (Housseini 205). A nationwide opinion poll reaching over 1,000 people identified the public’s views. Nineteen percent of the individuals polled believed Kevorkian had committed murder and twenty-seven percent felt he should be charged with a crime, but not murder. Thirty-nine percent of the individuals polled did not believe Kevorkian had committed any crimes and should not be punished (Hosseini 206). These numbers represent a growing acceptance of PAS in society.

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